a relation, that use to transact business for a man, are quoad hoc his servants; and the principal must answer for their conduct for the law implies, that they act under a general command; and without such a doctrine as this no mutual intercourse between man and man could subsist with any tolerable convenience. If I usually deal with a tradesman by myself, or constantly pay him ready money, I am not answerable for what my servant takes up upon trust; for here is no implied order to the tradesman to trust my servant: but if I usually send him upon trust, or sometimes on trust and sometimes with ready money, I am answerable for all he takes up; for the tradesman cannot possibly distinguish when he comes by my order, and when upon his own authority.q

to

a

If a servant, lastly, by his negligence does any damage a stranger, the master shall answer for his neglect: if smith's servant lames a horse while he is shoeing him, an action lies against the master, and not against the servant. But in these cases the damage must be done, while he is actually employed in the master's service; otherwise the servant shall answer for his own misbehaviour. Upon this principle, by the common law," if a servant kept his master's fire negligently, so that his neighbour's house was burned down thereby, an action lay against the master; because this negligence happened in his service: otherwise, if the servant, going along the street with a torch, by negligence sets fire to a house; for there he is not in his master's immediate service: and must himself answer the damage personally. But now the common law is, in the former case, altered by the statute 14 Geo. III. c. 78, re-enacting the 6 Ann. c. 3, which ordains that no action shall be maintained against any, in whose house or chamber any fire shall accidentally begin; for their own loss is sufficient punishment for their own or their servant's carelessness. But if such fire happens through negligence of any servant (whose loss is commonly very little) such servant shall forfeit 1007., to be distributed among the sufferers; and, in default of payment, shall be committed to some workhouse and there

Dr. & Stud. d. 2, c. 42. Noy's Max. c. 44.

r

Noy's Max. c. 44.

[ 431 ] where a

master shall

answer for gence of his

the negli

servant.

H H

[ 432 ]

kept to hard labour for eighteen months. A master is, lastly, chargeable if any of his family layeth or casteth any thing out of his house into the street or common highway, to the damage of any individual, or the common nuisance of his majesty's liege people:t for the master hath the superintendence and charge of all his household. And this also agrees with the civil law;" which holds that the pater familias, in this and similar cases, "ob alterius culpam 66 tenetur, sive servi, sive liberi."

We may observe, that in all the cases here put, the master may be frequently a loser by the trust reposed in his servant, but never can be a gainer; he may frequently be answerable for his servant's misbehaviour, but never can shelter himself from punishment by laying the blame on his agent. The reason of this is still uniform and the same; that the wrong done by the servant is looked upon in law as the wrong of the master himself; and it is a standing maxim, that no man shall be allowed to make any advantage of his own wrong.

Before concluding this chapter, it is proper to add, that by statute 32 Geo. III. c. 56, if any person shall give a false character of a servant, or if a servant shall give a false account, he shall, upon conviction before a justice of the peace, forfeit 20%., and 10s. costs.

Upon a similar principle, by the law of the twelve tables at Rome, a person by whose negligence any fire began was bound to pay double to the sufferers; or, if he was not able

to pay, was to suffer a corporal punish

ment.

u

Noy's Max. c. 44.

Ff. 9, 3, 1. Inst. 4, 5, 1.

CHAPTER THE FIFTEENTH.

OF HUSBAND AND WIFE.

THE second private relation of persons is that of marriage, [ 433 ] which includes the reciprocal right and duties of husband and wife: or, as most of our elder law books call them, of baron and feme. In the consideration of which I shall in Division of the first place inquire, how marriages may be contracted or made; shall next point out the manner in which they may be dissolved; and shall, lastly, take a view of the legal effects and consequence of marriage.

the chapter.

marriage

may be con

tracted.

I. Our law considers marriage in no other light than as a I. How a civil contract, and until very recently, the holiness of the matrimonial state was left entirely to the matrimonial law: the temporal courts not having jurisdiction to consider unlawful marriage as a sin, but merely as a civil inconvenience. The punishment therefore, or annulling, of incestuous or other unscriptural marriages, was the province of the spiritual courts: which act pro salute anima.a However, by the 5 & 6 Wm. IV. c. 54, it is enacted, that marriages between persons within the prohibited degrees of affinity, which had been celebrated before the passing of the act, (the 31st of August, 1835), should not be annulled for that cause, by any sentence of the ecclesiastical court, unless pronounced in a suit which should be depending at the time of the passing of the act, (s. 1); but that henceforward all such marriages shall be null and void. These are therefore now positively void, and I conceive their nullity would be recognized, as well in the temporal, as in the ecclesiastical courts. Taking marriage however

parties must

in its civil light, the law treats it as it does all other contracts allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law.

[434] First, they must be willing to contract. "Consensus non First, the "concubitus, faciat nuptias," is the maxim of the civil law in be willing to this case:b and it is adopted by the common lawyers, who indeed have borrowed (especially in ancient times) almost all their notions of the legitimacy of marriage from the canon and civil laws.

contract.

Secondly,

able to contract.

The disabilities.

Secondly, they must be able to contract. In general, all persons are able to contract themselves in marriage, unless they labour under some particular disabilities, and incapacities. What those are, it will be here our business to inquire.

Now these disabilities are of two sorts: first, such as are canonical, and therefore sufficient by the ecclesiastical laws to avoid the marriage in the spiritual court; but all of these in our law only made the marriage voidable, and not ipso facto void, until sentence of nullity be obtained. Of this nature are pre-contract; some particular corporal infirmities, consanguinity, or relation by blood; and affinity or relation by marriage, but these last, as we have just seen, now render the marriage void.d And these canonical disabilities are either grounded upon the express words of the divine law, or are consequences plainly deducible from thence it therefore being sinful in the persons who labour under them, to attempt to contract matrimony together, they are properly the object of the ecclesiastical magistrate's coercion; in order to separate the offenders, and inflict penance for the offence, pro salute animarum. But such marriages, before the recent statute, not being void ab initio, but voidable only by sentence of separation, they were esteemed valid to all civil purposes, unless such separation were actually made during the life of the parties. For, after the death of either of them, the courts of common law would not suffer the spiritual court to declare such marriages to have been void; because such declaration could not then tend to the reformation b Ff. 50, 17, 30. See ante p. 467.

c Co. Litt. 33.

of the parties. And therefore when a man had married his first wife's sister, and after her death the bishop's court was

proceeding to annul the marriage and bastardize the issue, the [ 435 ] court of king's bench granted a prohibition quoad hoc; but permitted them to proceed to punish the husband for incest.f But since the recent statute & a prohibition, it is conceived, would not be granted. These canonical disabilities being The canoni entirely in the province of the ecclesiastical courts, our ties. books are perfectly silent concerning them. But there are

a few statutes, which serve as directories to those courts, of which it will be proper to take notice. By statute 32 Hen. VIII. c. 38, it is declared, that all persons may lawfully marry, but such as are prohibited by God's law; and that all marriages contracted by lawful persons in the face of the church, and consummate with bodily knowledge, and fruit of children, shall be indissoluble. And (because in the times of popery a great variety of degrees of kindred were made impediments to marriage, which impediments might however be bought off for money) it is declared by the same statute, that nothing (God's law except) shall impeach any marriage, but within the Levitical degrees: the farthest of which is that between uncle and niece. By the same statute all impediments, arising from pre-contracts to other persons, were abolished and declared of none effect, unless they had been consummated with bodily knowledge : in which case the canon law holds such contract to be a marriage de facto. But this branch of the statute was repealed by statute 2 & 3 Edw. VI. c. 23. How far the act of 26 Geo. II. c. 33, (which prohibits all suits in ecclesiastical courts to compel a marriage, in consequence of any contract) may collaterally extend to revive this clause of Henry VIII.'s statute, and abolish the impediment of precontract, I leave to be considered by the canonists.

cal disabili

bilities.

The other sort of disabilities are those which are created, Other disaor at least enforced, by the municipal laws. And, though some of them may be grounded on natural law, yet they are regarded by the laws of the land, not so much in the light of any moral offence, as on account of the civil inconveniences

Co. Litt. 33.

f Salk. 548.

8 5 & 6 Wm. IV. c. 54.

h Gilb. Rep. 158.